Biggest verdicts of ’09 not so big

Quite possibly. When the largest jury verdicts of the last five years are stacked up next to each other, a precipitous decline in the size of the awards becomes immediately apparent.

For the first time since 2004, the biggest verdict last year did not break the $20 million mark. While 2009’s $15.7 million verdict in a patent dispute over blood collection technology is nothing to sneeze at, it is dwarfed by the top verdicts of recent years, most of which also have been for patent cases.

The largest verdict of 2005 was a staggering $128 million patent award in a dispute over wireless phone service. In 2006, it was a $65 million verdict in a pharmaceutical patent case. And in 2008, it was a $45.5 million award in a patent lawsuit over computer technology – nearly three times the size of last year’s top verdict.

But Martin J. O’Donnell, one of two lawyers who helped win the $15.7 million verdict last year, has no complaints.

“I wouldn’t say it was a lean year for patents,” he says, calling his win “a pretty good judgment considering the amount of sales and profits lost.”

Meanwhile, the year was kinder to medical-malpractice cases, thanks to a surprise $15 million award for the family of a 3-year-old who died after being treated for a heart defect at Children’s Hospital in Boston. The verdict was the second largest of 2009, edging out two $9 million med-mal verdicts that made the top 10 list in 2008.

But overall, verdicts in Massachusetts were more modest than five years ago.

Swiss engineer Jean-Denis Rochat was trying to find a better way to collect blood when he invented a centrifuge that could separate red blood cells from plasma. In 1999, he applied for a patent for the device, assigning it to the Braintree-based company Haemonetics, which sells portable, lightweight blood-collection systems to organizations such as the Red Cross for use in the field.

In 2003, Delaware company Baxter Healthcare Corp. introduced its own portable, lightweight blood collection system. It included a centrifugal device that, from the perspective of Haemonetics and Rochat, was a bit too familiar.

In 2005, Haemonetics accused Baxter of infringing on Rochat’s patent in U.S. District Court. Although Baxter argued that it had filed its own patent application for its centrifugal device and that Rochat’s invention was obvious enough that anyone “skilled in the art” could create it, it was Rochat’s testimony during the eight-day trial that helped persuade the jury.

After just a day of deliberations, jurors awarded Haemonetics $11.3 million in lost profits and $4.3 million in royalties.

“You never really know what’s in the jury’s mind, but I think Jean-Denis was a very convincing witness,” O’Donnell says. “He explained how he had invented it and what he was trying to do, and the jury believed him. The jury likes to see the technology, but they really like to see the person behind the technology. In this case, they were able to do so.”

Although Jason Fox, a toddler with a life-threatening heart defect, had endured multiple operations in his short life without serious problems, the treatment he received at Children’s Hospital in Boston seemed to have hastened his death.

A young and predominantly female jury apparently agreed with plaintiffs’ counsel that it was suspicious that the doctors at Children’s had changed the boy’s medical records and overlooked signs that the contrast dye they were using to illuminate his circulatory system was harming him.

After a six-week trial, the jurors took their time weighing the evidence of a possible cover-up against the reputations of two of the state’s most respected doctors. On the fourth day of deliberations, Children’s Hospital approached the plaintiffs with a deal: a high-low agreement to cap damages in exchange for a guaranteed payment. Hours after the plaintiffs accepted, the jury returned with a $15 million award in their favor.

“The conventional wisdom was that this case was not going to be a plaintiff’s verdict,” says attorney James E. Fox, the cousin of Jason’s father. “Any sane lawyer would probably have thought that. However, we took about 44 depositions in this case around the country, and we got 44 different stories, which demonstrated that there were a lot of changed stories in this case. One of the things we found, which turned out to be critical, was that they had changed the medical record. I think that made the jury mad. I think that got us over the hump.”

Shawn Drumgold spent 15 years in prison after he was convicted in 1989 for the shooting death of Tiffany Moore, a 12-year-old who had been sitting on a mailbox in Roxbury when she was caught in gang crossfire.

Drumgold was freed in 2003 when evidence emerged that a flawed investigation led to his wrongful conviction. He sued two now-retired Boston homicide detectives, along with the city of Boston and a former police commissioner, claiming they violated his civil rights by coercing witnesses and withholding exculpatory evidence.

In 2008, a federal jury ruled against Drumgold on 10 of 11 counts, leaving just one count on which it had deadlocked. That lone remaining allegation became the basis for a 2009 jury trial that resulted in a $14 million verdict.

“Everybody remembers the little girl on the mailbox. It was a shock to people to find out that the wrong person had been convicted,” Michael Reilly says. “One lesson that we learned is that we over-tried the first case. There were too many issues, too many theories. We were forced in the re-trial to focus on one argument with one defendant, and we did a better job. It’s a lesson that you learn over and over: Less is more.”

Almost nine months’ pregnant, Kimberly Monson began suffering intense headaches one January morning. Though she at first dismissed them as migraines, she soon contacted her obstetrician and was hospitalized later that day.

The doctor diagnosed her with preeclampsia, a condition that often develops after the 20th week of pregnancy. When her headache worsened, the doctor gave her painkillers, but the treatment failed to improve her condition. Shortly after 9 p.m., a nurse found her unconscious and could not wake her. The baby was delivered healthy by a Caesarean section and Monson, who had suffered a stroke, was taken to another hospital where blood was drained from her head.

She now walks with a brace and a pronounced limp and suffered cognitive deficits. Her vision is impaired, and she can no longer drive at night. She also suffered severe memory lapses and has been unable to return to work.

“Having done medical malpractice for the past 18 years, you are never totally confident that you are going to win a case,” Gregg J. Pasquale says. “But as we got closer to trial, and during the course of the trial, it seemed like our story was really resonating with the jury, and the defendant’s story was not.”

Still, Pasquale says, he had concerns.

“[The doctor] did not do nothing,” he acknowledges. “She did attend to my client, and she didn’t abandon her. But she did not attend to her the way that we said she should have.”

Marc Beauregard was found dead in a Lowell park in the summer of 2003. His former live-in boyfriend, Steven Knight, did not seem particularly upset; instead, he began cashing backdated checks in the dead man’s name.

Knight was never indicted in connection with Beauregard’s death. In 2006, just before the statute of limitations ran out, Beauregard’s family filed a wrongful-death lawsuit against the ex-boyfriend, alleging that he had killed Beauregard – who had recently put Knight in his will – for money.

During the eight-day trial, Knight contradicted his own statements about where he was on the night of Beauregard’s death. Although he initially told police he had not been in Lowell on the evening in question, Knight revealed on the stand that he had, in fact, been there twice that night, first to ask a friend if she wanted to go to the beach and later to stop in a secluded area with his new boyfriend, not far from the spot where Beauregard’s body was found.

The jury deliberated for less than two days before finding that Knight had played a “substantial” role in Beauregard’s murder and awarding his family $6 million.

Michael Talty, who represented the family, says that the lurid facts of the lawsuit made trying it a challenge.

“Because it was a sensational case, we felt that it was important to balance respect for the decedent with portraying the facts in the light that we wanted to,” he says. “[But] it was clear that the case needed to be tried once enough time passed without an indictment.”

As to whether Knight will ever be criminally charged with Beauregard’s death, Talty says: “From what I understand, the investigation is still open.”

When the city of Taunton took a 164-acre parcel by eminent domain in 2002, the owner was certain that the $726,000 he was paid for the land was well below market value. Though it took seven years for the case to reach a courtroom, he ultimately was proven correct – and then some.

The city argued that the highest and best use for the property was as an industrial lot. The case languished until, in 2008, Peter E. Flynn and John S. Leonard took it on.

Their first move was to bring in a new team of experts, who told them the best use for the property would be as a commercial development. The case got a boost when the plaintiff’s lawyers were able to show a similar property on a nearby street sold for $5 million.

“We were most concerned about evidence that we didn’t think reflected the true market value of that property, and we felt we had a good basis for establishing that there were good commercial opportunities for this property,” Flynn says. “The big point throughout the trial was whether or not sophisticated retailers” would be interested in the land.

During his closing argument, Flynn says, he hammered on the similar sale of $5 million. The jury apparently heard him. “They gave us the benefit of the doubt and came in at $5.26 million. Now, the rest is history.”

When the Mystic Valley Development Commission snapped up a property owner’s land in Medford, a big-time dispute arose over the parcel’s price tag.

Claiming that hazardous waste and wetlands problems significantly lessened the vale of the 5.7 acres, the commission argued it was worth a mere $280,000.

At trial, the plaintiff property owner, who claimed the land’s value exceeded seven figures, devoted a large chunk of the case to proving that the commission had greatly exaggerated those problems.

Given its proximity to Boston, Cambridge and Logan International Airport, plaintiffs’ counsel George A. McLaughlin says, he presented jurors with evidence that the land was, in fact, quite valuable.

Through the testimony of multiple experts, including a real estate broker and an engineer, McLaughlin demonstrated during the eight-day trial that the parcel could be developed into a 60,000-square-foot building with minimal hazardous waste expense.

“The defendants were taking the position that the land couldn’t be developed because it didn’t have adequate frontage, it was wetlands, it didn’t have access and it had hazardous waste,” McLaughlin says. “I had experts who I felt solved all the problems with the case, but when you’re trying a jury trial, you never know. You think you’re going to prove your case, but my big concern on the eve of trial was dealing with all those aspects of the defense.”

When police and prosecutors charged and ultimately convicted defendant Richard Lariviere of soliciting an informant in 2005 to murder his estranged wife and burn down the home of her lawyer, a civil suit followed.

In 2007, Lariviere, 67, was convicted in criminal court of hiring a Florida hit man to murder his estranged wife, Helen, and of setting fire to the home of attorney Robert Weihrauch, who had previously helped her get a restraining order against her husband. Weihrauch’s wife, plaintiff Barbara Weihrauch, was Helen’s close friend.

Barbara Weihrauch’s civil suit gained traction in 2008 when a Superior Court judge found at summary judgment that Lariviere had intended to cause emotional distress and had engaged in extreme conduct that went beyond all bounds of decency.

The only issues remaining for a jury were whether the plaintiff suffered severe emotional distress and whether the defendant’s conduct was a causal factor.

“Part of her emotional distress arose out of the fact that she sat there in court during these various court proceedings and heard firsthand what he had done,” says plaintiff’s co-counsel Howard E. Stempler. “Not only did she hear the DA read transcripts of the guy saying that he wanted them killed, but she actually heard audio tapes of him telling the informant that he wanted their house burned down to the ground and that there would be a bonus if they were inside when he did it.”

After six hours of futile pushing, Lucy Malley seemed to be making no progress in the birth of her child. And though there was a troublesome pattern to the baby’s heartbeat, the doctor on duty at Brigham & Women’s Hospital decided to forgo a Caesarean section and instead continue vaginal labor until the end of his shift. When the next doctor arrived, he immediately ordered a C-section.

The baby, Matthew, survived but sustained a stroke that permanently prevented him from freely using his right arm and leg. Now 9 years old, he walks with a limp and is unable to play sports as well as he would like, despite years of intense physical therapy.

After a 10-day trial and several hours of deliberations, the jury sent a message to the judge asking for “a baseline for the damages.” Before the plaintiffs’ lawyers could respond that they were unable to answer the question, the jury returned with a verdict: $1.8 million for Matthew and $250,000 for each of his parents.

“We decided to really focus on the positive, on all the things that Matthew can do despite his disability,” Ainsworth says. “We let the damages speak for themselves. That’s what I learned most from this case – that the jury really responded to that and did their best to come up an appropriate award.”

– Julia Reischel

10. $2.06 million

(Breach of contract)

Falmouth Ox-Bow Realty Trust, et al. v. Black

Barnstable Superior Court

Date of verdict: Aug. 13, 2009

Plaintiffs’ attorney: David V. Lawler, The Law Office of David V. Lawler, Hyannis

Status of verdict: On appeal

In 2004, Joseph and Ruth Black thought they had sold their home, which had been in the family for nearly 100 years. Under the terms of the sale, the realty company buying the property was required to use “reasonable efforts” to obtain approvals needed to construct a multi-unit development under the Massachusetts affordable housing statute.

But when the deal began to stall, the elderly couple suspected the developer was not taking adequate steps to close the sale.

In 2007, a representative of the developer suddenly demanded that the price be re-negotiated, and, according to the Blacks, the developer threatened to sue them if the new terms were not accepted. That, in turn, would have made it difficult, if not impossible, for the Blacks to sell the property to anyone else.

The couple, represented by David V. Lawler, believed they had no choice but to terminate the agreement and let a jury decide who was to blame.

“I think the developer felt that my clients were older and capable of being bullied and that time was not on their side,” Lawler says. “Our theory of liability, which the jury obviously accepted, was that this developer was intentionally delaying the sale with the hope that market conditions would improve.”